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Florida - COMMUNICATION
Second DCA reverses order finding city’s prepayment request for public records production unreasonable, also noting that because litigation was pending public records request should have been submitted to city attorney rather than city clerk. [Added 8/23/21]
A property purchaser discovered that the land was contaminated, allegedly as a result of illegal dumping by City. The parties entered into an agreement under which City was to remediate the contamination. The purchaser assigned its rights to Dorchester, which sued City. After filing suit Dochester’s counsel sent a public records request to the City Clerk seeking a large volume of records.
City’s initial estimate for costs to fulfill the request was for about $6155 to be paid in advance, with possible additional costs of about $256,571 to review the responsive documents for exempt information. Dorchester revised the scope of its request, and the Clerk advised Dorchester that the cost to review the documents for exempt information would be about $27,500. Following communications between Dorchester and the City Attorney, Dorchester filed a suit against City alleging unlawful refusal to provide the requested public records. After a hearing the trial court entered an order finding the City’s cost estimates were unreasonable and that, due to its request for prepayment, the City unlawfully refused to respond to the records request. City appealed.
The Second DCA reversed. The court summarized the obligations of the City under Florida law: “[T]he Public Records Act requires a records custodian to determine whether the requested records exist, locate the records, and review each record to determine if any of those records are exempt from production. Moreover, if the nature or volume of the requested records requires the extensive use of information technology resources or clerical or supervisory assistance, the Act permits the agency to charge a special service charge to cover these costs, and the City’s preliminary estimate regarding this charge must be paid in advance.”
In this case, the appeals court noted that the trial court apparently assumed, incorrectly, that the City was requiring prepayment of the estimated $27,500 cost of review; actually, the City asked Dorchester to prepay only $6155. Further, Dorchester failed to present evidence that the City’s estimates were unreasonable. The record also contained no meaningful findings or explanation regarding the conclusion that the City’s estimate was unreasonable. “Accordingly, we conclude that the trial court erred in holding that the City’s prepayment request constituted an unlawful interference with Dorchester’s right of access to public records.”
In a footnote, the court also addressed the ethical question of whether the public records request should have been sent to the City Attorney instead of the City Clerk. “It appears that the City Attorney was unaware of Dorchester’s public records request until the City Clerk – not opposing counsel – advised her that the request had been received. Although there appears to be no prohibition against using the Act as a discovery device, thereby circumventing the rules of civil procedure regarding discovery, this does not provide an attorney who represents a party in pending litigation with carte blanche to directly contact a represented opposing party. See R. Regulating Fla. Bar 4-4.2; Fla. Bar Ethics Opinion 09-1 (concluding that a lawyer may not communicate with government officers, directors, or employees who are directly involved or whose acts can be imputed to the government entity in a represented matter) . . . In this case, the City Clerk informed the City Attorney of the public records request on the same day the request was filed, so no harm has been done. Nevertheless, the better practice would have been to submit the public records request via the City Attorney.” City of St. Petersburg v. Dorchester Holdings, LLC, __ So.3d __ (Fla. 2d DCA, No. 2D20-463, 10/20/2021) (revised opinion), 2021 WL 4877782.
Reiterating that post-trial juror interviews should be rarely granted, Fourth DCA quashes order for interviews because movant failed to satisfy 3-part De La Rosa test. [Added 8/8/17]
Following a defense verdict in a medical malpractice trial, Plaintiffs filed a motion to interview jurors based on the alleged failure of 2 jurors to disclose litigation history in response to the jury questionnaire. The trial court granted the motion. Defendants petitioned for a writ of certiorari.
The Fourth DCA granted the petition and quashed the order, ruling that Plaintiffs had failed to establish the 3 requirements for granting post-trial juror interviews. The 3-part test set by the Florida Supreme Court in De La Rosa v. Zequeira, 659 So.2d 239 (Fla. 1995) requires proof of materiality, concealment, and diligence. Specifically the movant must offer proof that: “‘(1) The concealed information was relevant and material to jury service in the case; (2) The juror concealed the information during questioning; and (3) The failure to disclose the information was not attributable to the complaining party’s lack of diligence.’ [Pembroke Lakes Mall Ltd. v.] McGruder, 137 So.3d 418, 427 (Fla. 4th DCA 2014) (emphasis added).”
The Fourth DCA concluded that Plaintiffs failed to show that the information in question was material to the medical malpractice case; “most of the history was remote, some occurring more than eight years prior, and were not seemingly related to the subject of the instant case.” Nor did the Plaintiffs show that the jurors concealed the information. “[I]t does not appear that plaintiffs’ counsel ‘squarely asked’ [the 2 jurors] about their experience with all legal matters, including domestic violence or child abuse. . . . This conclusion does not mean, as plaintiffs contend, that parties will no longer be able to rely on responses to jury questionnaires. What it does mean is that all lawyers will need to be diligent, clear, and precise in questioning prospective jurors concerning their litigation history.” Finally, the court noted the lack of due diligence on the part of Plaintiffs’ counsel; “[w]hile the diligence test does not require counsel to discover the concealed facts prior to the return of a verdict, the Florida Supreme Court has said that counsel should check juror records without delay ‘[w]here possible.’” (Citation omitted.)
The court concluded: “To preserve the continued viability of the right to a jury trial, we reiterate ‘[p]ost-trial juror interviews should be ‘rarely granted and the sanctity of the jury process as well as the privacy rights of the jurors themselves should be closely guarded and protected.’’” (Citation omitted.) Children’s Medical Center, P.A. v. Kim, __ So.3d __ (Fla. 4th DCA, No. 4D16-4319, 6/21/2017), 2017 WL 2664687.
Regardless of whether motion to interview jurors after criminal trial is considered under Rule 4-3.5(d)(4) or Fla.R.Crim.P. 3.575, movant must make preliminary showing of prejudice to be entitled to interview jurors. [Added 7/7/17]
Following a trial at which he was found guilty, Defendant filed a motion seeking to interview jurors. The motion recited statements by an alternate juror that Defendant claimed “demonstrate the ‘verdict may be subject to challenge.’” He contended that Fla.R.Crim.P. 3.575 required the court to permit the interview. The court denied the motion.
On appeal Defendant asserted that the trial court erred in denying his motion to interview jurors. He argued that “the trial court did not follow the proper procedure because it determined the issue of prejudice without first conducting any interviews.” According to Defendant, once he presented facts showing juror misconduct, interviews were required. Then, following the interviews, the state would have to show at an evidentiary hearing that the misconduct did not prejudice Defendant.
The Second DCA rejected Defendant’s argument, ruling that “[t]he trial court correctly recognized that absent a preliminary showing of prejudice, [Defendant] was not entitled to interview jurors.” The court’s opinion discussed the history of juror interviews and the procedural and ethics rules that now apply. The commentary to the civil rule (Fla.R.Civ.P. 1.431(h)) indicates that it established a procedure for juror interviews under Rule of Professional Conduct 4-3.5(d)(4), but the commentary to the criminal rule (Fla.R.Crim.P. 3.575) explained that it does not provide a procedure for the interviews. The appellate court, however, found that these differences were not relevant to the case before it. “Whether counsel should proceed under the applicable procedural rule or under the Bar’s rule is largely academic, however. . . . [E]ach rule requires counsel to make the same showing before the court may allow a juror interview.”
According to the Supreme Court, a juror interview “is never permissible unless the moving party has made sworn factual allegations that, if true, would require a trial court to order a new trial.” Baptist Hospital of Miami, Inc. v. Maler, 579 So.2d 97, 100 (Fla. 1991). The Second DCA noted that the Supreme Court “has applied this standard regardless of whether the request came via rule 1.431(h), rule 4-3.5(d)(4), or rule 3.575.” Dowd v. State, __ So.3d __ (Fla. 2d DCA, No. 2D14-4961, 5/26/2017), 2017 WL 2304663.
Fourth DCA upholds order barring lawyers in criminal case from making extrajudicial statements until jury had been sworn for defendant’s third trial. [Added 7/6/17]
Defendant was charged with solicitation to commit murder in a highly publicized case that included videos posted on the police department’s YouTube page and an episode of a national television show. Defendant was convicted, but the conviction was reversed on appeal due to error relating to juror exposure to media coverage. The second trial resulted in a hung jury. After that mistrial, defense counsel issued a press release containing allegations against the prosecution.
The state moved for a protective order to prohibit extrajudicial statements by defense counsel. The motion asserted that, through their statements, defense counsel were trying to “improperly influence the local jury pool” before the defendant’s third trial. Citing Rule 4-3.6(a), the motion referred to defense counsel’s “prior pattern and past tactics” of attempting to influence potential jurors. The motion also sought revocation of one defense lawyer’s pro hac vice admission.
After an evidentiary hearing, the trial court granted the motion for protective order, although it denied revocation of defense counsel’s pro hac vice admission. The court’s order “prohibited ‘[a]ll counsel in this case . . . from making any extrajudicial statement’ reasonably expected to be publicly disseminated which specifically related to the following: a. The evidence in this case or any party’s view or opinion of the evidence in this case; b. The facts of the case or any party’s interpretation of the facts of the case, including any inferences that could be drawn from the facts; c. The motive or motivation of the State in prosecuting the case or the motive or motivation of the Defendant in pursuing any theory of defense; d. Sentencing or punishment of the Defendant including any reference to the sentence imposed after the first trial, the Defendant’s score on the Criminal Punishment Code Scoresheet, length of in-house arrest or punishment of the Defendant if found guilty; e. Theories of the case by the State or the Defendant; f. The first or second trial of this case, including the results of those trials; and g. The disparagement of any attorney of record in this case.” The order did permit counsel to “comment ‘generally on the progress of the case, procedural matters or rulings of the Court, provided the comments are consistent with the Florida Rules of Professional Conduct.’” The order was to expire upon the swearing of the jury.
Defendant petitioned the Fourth DCA for a writ of certiorari. In a detailed opinion, the appellate court denied the petition “because the trial court’s well-reasoned order does not depart from the essential requirements of the law. The order demonstrates that extrajudicial statements pose an imminent and substantial threat to a fair trial; is narrowly tailored in both substance and duration; and is viewpoint neutral as it applies to extrajudicial comments by both parties’ counsel.” Dippolito v. State, __ So.3d __ (Fla. 4th DCA, No. 4D17-1145, 5/26/2017), 2017 WL 2303175.
Court’s denial of post-trial motion to interview juror reversed by Fifth DCA. [Added 5/15/17]
Plaintiff Parr sued Westgate Palace hotel after an alleged slip and fall accident. During voir dire Juror 121 answered “no” to questions regarding whether she or an immediate family member had ever been a party in a lawsuit or accused in a criminal case. Juror 121 also was the only jury panel member “who admitted to being excited about” jury duty. After an adverse verdict, Westgate filed a motion to interview Juror 121 and a motion for new trial. The trial court denied the motions. Westgate appealed.
The Fifth DCA reversed. “Westgate’s post-trial research allegedly revealed twenty criminal cases against Juror 121; seven resulted in convictions, of which four resulted in a period of her incarceration. Juror 121’s alleged concealment of her past, combined with her enthusiasm to serve as a juror, deprived Westgate of the opportunity to make an informed judgment about its use of a peremptory challenge.” Because Juror 121 had denied having any litigation history, Westgate “had no reason to question her regarding her attitude towards the courts or her concept of justice.” Westgate Palace, LLC v. Parr, __ So.3d __ (Fla. 5th DCA, No. 5D16-1503, 4/13/2017), 2017 WL 1372089.
First DCA denies certiorari petition seeking to stop post-trial juror interviews on ground that petitioner will not suffer irreparable harm if interviews take place. [Added 2/6/17]
After a verdict for Plaintiff in a personal injury suit, a juror contacted the trial court about the case. When the trial court told the parties’ lawyers, Defendant’s counsel announced that two jurors had approach defense counsel after the trial and suggested that jurors had agreed not to follow the court’s instructions. Over Plaintiff’s objection, the court ordered a limited interview of one juror. The court then considered Defendant’s motion to interview additional jurors. The court ordered interviews with the 5 remaining jurors.
Plaintiff filed a petition for certiorari with the First DCA. The appellate court denied the petition, ruling that Plaintiff had not met the certiorari requirement of showing irreparable harm. “If the interviews go forward and led to an order granting a new trial, then [Plaintiff] can appeal that order.”
The appeals court certified conflict with the Second DCA (Pesci v. Maistrellis, 672 So.2d 583 (Fla. 2d DCA 1996)). Laycock v. TMS Logistics, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D15-5518, 1/19/2017), 2017 WL 213909.
Second DCA reverses sanctions imposed against lawyer who gave “dishonest” answers to trial judge in matter involving Facebook research on juror. [Added 4/9/16]
Lawyer represented Defendants in a suit over dissolution of a dental practice. At the end of the day in which the jury was selected, the trial court warned the jurors to avoid any contact with parties, lawyers, or witnesses, and instructed them not to do “any electronic research on the Internet or any other electronic devices.”
The next morning Lawyer informed the judge that she wanted to strike a juror for cause “because the juror was a Facebook friend of one of [Lawyer’s client’s] employees.” The judge became upset and admonished Lawyer for violating the court’s instructions to the jury. When the judge asked Lawyer how she learned the information, Lawyer “gave three different answers to the inquiry.” None of her answers involved contact with the juror.
Plaintiff moved for a mistrial. The court found that Lawyer had acted in bad faith and granted the mistrial. Plaintiff also moved for sanctions against Lawyer. The court granted the motion and ordered Lawyer to pay the fees and costs of Plaintiff’s counsel. Lawyer appealed.
The Second DCA reversed. Lawyer gave the court “inarticulate, evasive, and dishonest answers. As a consequence, she violated her oath as an attorney to be honest before a tribunal. See R. Regulating Fla. Bar 4-3.3(a)(1) (‘A lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal.’); 4-8.4(c) (‘A lawyer shall not . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.’).” Despite this, however, Plaintiff had not proved his case for sanctions. In the view of the appeals court, Lawyer’s “dishonest answers” did not prevent a fair trail from being held and did not result in Plaintiff incurring additional fees.
The appeals court further noted that the trial court’s order regarding refraining from research “was directed to the jurors – not the attorneys or the parties – and could not be a basis for the imposition of sanctions against [Lawyer]. There is no prohibition in Florida law against an attorney researching jurors before, during, and throughout a trial so long as the research does not lead to contact with a juror. An attorney is not obligated to inform the court of such research unless it affects the fairness of the trial and the administration of justice.” Tenev v. Thurston, __ So.3d __ (Fla. 2d DCA, No. 2D14-4566, 3/9/2016), 2016 WL 886280.
Court erred in granting motion for post-trial juror interviews, where information in question was immaterial and irrelevant to jury service in the case. [Added 11/11/15] -- Penalver v. Masomere, 178 So.3d 533 (Fla. 3d DCA 2015).
First DCA upholds constitutionality and validity of medical malpractice presuit notice sections of F.S. 766.106 and 766.1065, which allow for ex parte interviews between potential defendants and claimant’s health care providers. [Added 8/5/15] -- Weaver v. Myers, 170 So.3d 873 (Fla. 1st DCA 2015), QUASHED BY Weaver v. Myers, 229 So.3d 1118 (Fla. 2017).
Court abused discretion in denying motion for post-trial juror interview. [Added 5/20/15] -- Barrios v. Locastro, 166 So.3d 863 (Fla. 4th DCA 2015).
Court erred in denying post-trial motion for interviews of jurors who failed to disclose their litigation history. [Added 2/27/14] -- Pembroke Lakes Mall Ltd. v. McGruder, 137 So.3d 418 (Fla. 4th DCA 2014).
Court did not abuse its discretion by denying post-trial motion to interview juror in tobacco liability case. [Added 9/11/13] -- Lorillard Tobacco Co. v. Alexander, 123 So.3d 67 (Fla. 3d DCA 9/4/2013).
Supreme Court adopts rules regulating use of electronic devices by jurors and others in court. [Added 7/8/13] -- In re: Amendments to the Florida Rules of Judicial Administration – Rule 2.451 (Use of Electronic Devices), 118 So.3d 193 (Fla. 7/3/2013).
Rejecting recommended 1-year suspension, Supreme Court suspends lawyer for 2 years for undisclosed communications with judge during murder trial. [Added 6/24/13] -- Florida Bar v. Scheinberg, 129 So.3d 345 (Fla. 6/20/2013).
Court erred in denying motion for new trial based on alleged juror misconduct without conducting juror interview. [Added 5/2/13] -- Hillsboro Management, LLC v. Pagono, 112 So.3d 620 (Fla. 4th DCA 4/24/2013).
Supreme Court holds that physician-patient confidentiality law bars ex parte meetings between nonparty treating physician and lawyer hired by her insurer. [Added 12/21/12] -- Hasan v. Garvar, 108 So.3d 570 (Fla. 2012).
Court erred in denying party’s motion to conduct post-trial interviews based on alleged concealment of material information during voir dire. [Added 9/14/12] -- Borroto v. Garcia, 103 So.3d 186 (Fla. 3d DCA 2012).
Order broadly restricting a party from engaging in out-of-court communications about the case is reversed. [Added 7/19/12] -- Romero v. Erik G. Abramson, P.A., 113 So.3d 870 (Fla. 2d DCA 2012).
Supreme Court criticizes lawyer for disregarding “spirit” of rules governing post-trial communication with jurors. [Added 6/15/12] -- Van Poyck v. State, 91 So.3d 125 (Fla. 2012) (revised opinion).
Criminal conviction reversed due to trial judge’s ex parte communication with the prosecution. [Added 2/28/12] -- Howell v. State, 80 So.3d 441 (Fla. 4th DCA, No. 4D10-2498, 2/22/2012).
Court properly denied motion for post-trial juror interviews because movant failed to sufficiently inquire during voir dire. [Added 1/17/12] -- Rodgers v. After School Programs, Inc., 78 So.3d 42 (Fla. 4th DCA, No. 4D10-1307, 1/11/2012).
Court erred in denying post-trial motion to interview jurors in criminal case. [Added 11/1/11] -- Gray v. State, 72 So.3d 336 (Fla. 4th DCA 2011).
Court erred in denying post-trial motion to interview jurors who allegedly concealed information during voir dire. [Added 6/2/11] -- State Farm Mutual Auto. Ins. Co. v. Lawrence, 65 So.3d 52 (Fla. 2d DCA 2011).
Lawyer publicly reprimanded for threatening to present criminal charges to gain advantage in civil matter. [Added 5/2/11] -- Florida Bar v. Knowles (Fla., No. SC09-403, 4/28/2011), 2011 WL 1587360.
Court abused its discretion in granting motion for post-trial juror interviews. [Added 3/19/11] -- Parra v. Cruz, 59 So.3d 211 (Fla. 3d DCA 2011).
Court erred in granting motion to interview jurors that was not timely filed. [Added 3/17/11] -- Hannon v. Shands Teaching Hospital and Clinics, Inc., 56 So.3d 879 (Fla. 1st DCA 2011). Rule 4-4.2 does not bar plaintiff's lawyers from communicating ex parte with treating physicians who are employed by defendant hospital. [Added 2/8/11] -- Lee Memorial Health System v. Smith, 56 So.3d 808 (Fla. 2d DCA 2011).
Florida Bar approves opinion addressing when lawyers may communicate with employees of state agency without consent of agency's counsel. [Added 12/16/10] -- In December 2010 the Florida Bar Board of Governors modified and approved an advisory ethics opinion addressing questions relating to a lawyer's communication with employees of a state agency without the consent of the agency's legal counsel. Florida Ethics Opinion 09-1 applies Rule 4-4.2 of the Florida Rules of Professional Conduct. to a fact situation in which a law firm that represents 4 clients in judicial or administrative proceedings involving a state regulatory agency wishes to communicate with certain employees of the agency without going through the agency's legal counsel.
The headnote accompanying Opinion 09-1 summarizes the conclusions reached in the opinion: "A lawyer may not communicate with officers, directors, or managers of State Agency, or State Agency employees who are directly involved in the matter, and other State Agency employees whose acts or omissions in connection with the matter can be imputed to State Agency about the subject matter of a specific controversy or matter on which a lawyer knows or has reason to know that a governmental lawyer is providing representation unless the agency's lawyer first consents to the communication. A lawyer may communicate with other agency employees who do not fall within the above categories, and may communicate with employees who are considered represented by State Agency’s lawyer on subjects unrelated to those matters in which the agency lawyer is known to be providing representation. The lawyer may be required to identify himself or herself as a lawyer who is representing a party in making those contacts. Lawyers communicating with agency personnel are cautioned not to either purposefully or inadvertently circumvent the constraints imposed by Rule 4-4.2 and Rule 4-4.3 in their communications with government employees and officials. If a lawyer does not know or is in doubt as to whether State Agency is represented on a particular matter or whether particular State Agency’s employees or officials are represented for purposes of the rule, the lawyer should ask State Agency’s lawyer if the person is represented in the matter before making the communication."
Lawyer held in indirect criminal contempt and jailed for post-trial contact with juror after court denied permission. [Added 6/3/10] -- Alan v. State, 39 So.3d 343 (Fla. 1st DCA 2010).
Court erred in enjoining parties, their counsel, and their agents from engaging in out-of-court publicity "consistent with" Rule 4-3.6. [Added 5/27/10] -- E.I. DuPont de Nemours and Co. v. Aquamar, S.A., 33 So.3d 839 (Fla. 4th DCA 2010).
Florida patient confidentiality statute prohibits ex parte communication between non-party physician and his own lawyer. [Added 11/19/06] -- Hannon v. Roper, 954 So.2d 534 (Fla. 1st DCA 2006).
Police detective's alleged deception of defendant's lawyer is not grounds for suppressing defendant's resulting statement. [Added 11/16/06] -- State v. Raines, 944 So.2d 421 (Fla. 5th DCA 2006).
Lawyers for defendant hospital may have ex parte contact with deceased patient's non-party treating physicians, who were hospital agents, employees, or former employees. [Added 10/3/05] -- Estate of Stephens v. Galen Health Care, Inc., 911 So.2d 277 (Fla. 2d DCA 2005). See also Lee Memorial Health System v. Smith, 40 So.3d 106, 107 (Fla. 2d DCA 2010) ("physician-patient privilege does not apply to [medical center]'s communications with its employee physicians because such communications are not 'disclosures' that trigger the privilege").
Lawyer represented by counsel in postconviction criminal matter did not violate Rule 4-4.2 by ex parte communication with state's attorney. [Added 1/31/05] -- Durie v. State, 901 So.2d 171 (Fla. 5th DCA 2005) (on rehearing).
Statements made in city commission meeting that arguably were relevant to former employee's suit against city were not improper ex parte communications under F.S. SEC. 286.0115. [Added 2/9/04] -- City of Hollywood v. Hakanson, 866 So.2d 106 (Fla. 4th DCA 2004).
Court erred in granting defense counsel's motion for ex parte contacts with physicians who treated deceased nursing home patient; contacts barred by patient-physician privilege. [Added 1/29/04] -- Knittel v. Beverly Health and Rehabilitative Services, Inc., 863 So.2d 1279 (Fla. 2d DCA 2004).
Where a contractual confidentiality agreement was determined not to protect certain information held by person, opposing counsel could communication with person in informal ex parte interview. [Added 8/13/03] -- Nestor v. Posner-Gerstenhaber, 857 So.2d 953 (Fla. 3d DCA 2003).